MyApiary Manager is an online operations and apiary management system designed specifically for commercial beekeeping businesses. The tool is designed to assist beekeeping businesses in day to day operations and management. These Terms and Conditions are intended to explain MyApiary’s obligations as a service provider and Customer’s (“you” or “your”) obligations as a customer. Please read them carefully.
These Terms and Conditions are binding on your use of the Services and apply to you from the time that MyApiary provides you with access to the Services. It is your obligation to ensure that you have read, understood and agree to Terms and Conditions outlined below. If you do not agree to these Terms and Conditions in their entirety, then you should immediately cease using our Services and contact MyApiary.
By registering to use the Services you acknowledge that you have read and understood these Terms and Conditions and have the authority to act on behalf of any organisation for whom you are using the Services for. You are deemed to have agreed to these Terms and Conditions on behalf of any entity for whom you are using the Services for.
1. Defined terms
1.1 In this Agreement:
Administrator means a User who is nominated and authorised by the Customer to administer the Customer’s use of the Services in accordance with the permissions made available to the Administrator by MyApiary.
Agreement means this agreement, which comprises the Details and these terms and conditions.
App means the software application installed on your tablet or phone to access the Portal.
Business Day means any day other than a Saturday, a Sunday or a public holiday in Auckland, New Zealand.
Commencement Date means the commencement date recorded in the Details.
Confidential Information means all information, in any form, relating to the business or prospective business, current or projected plans of a party, except where the information is in the public domain (otherwise than by a breach of this Agreement), or is already in the possession of the recipient party or subsequently comes into the possession of the recipient party from a third party, without any duty of confidentiality imposed or implied.
Customer means the party named as the Customer in the Details.
Data means any data collected by, or inputted into the Services by the Customer.
Details means the details set out on the first page of this Agreement.
Fees means the fees set out in the Details.
GST means goods and services tax payable pursuant to the Goods and Services Tax Act 1985.
Initial Term means the initial term recorded in the Details.
Insolvency Event means in relation to a party, where that party becomes unable to pay its debts as they fall due, or a statutory demand is served, a liquidator, receiver or manager (or any similar person) is appointed, or any insolvency procedure under the Companies Act 1993 is instituted or occurs.
Intellectual Property Rights means any current and future intellectual property rights whether registered or unregistered, including copyrights, design rights, trade marks, trade names, domain names, rights in logos and get-up, patents, inventions, confidential information and know-how, all rights in computer software, design, privacy, data and databases.
Payment Instructions means the payment instructions recorded in the Details.
Portal means the App or Website used to access to the Services.
Renewal Term has the meaning given in clause 2.2.
Services means the services provided by MyApiary to the Customer in conjunction with the Software to assist beekeepers with operational management and planning and that will be accessed by the Customer through the Portal.
Software means the MyApiary proprietary software, tools and applications that will be hosted in the cloud (as may be altered or upgraded by MyApiary from time to time).
Team means a User who is not the Administrator.
Term means the Initial Term together with any Renewal Terms.
User means an individual employee or independent contractor of the Customer who is authorised by the Customer to use the Services.
Website means the MyApiary website www.myapiary.com or www.myapiary.co.nz.
1.2 Interpretation
Unless the context requires otherwise, in this Agreement:
(a) Capitalised terms have the meaning given in clause 1.1 or as otherwise assigned to them in this Agreement;
(b) a reference to a party is to a party to this Agreement, and includes the party's executors, administrators, successors and company name changes;
(c) a reference to currency is a reference to New Zealand dollars;
(d) a reference to a document includes that document as modified or replaced from time to time;
(e) use of the term “includes” or “including” shall be constructed without limitation;
(f) a reference to a clause is to a clause in this Agreement, and a reference to a schedule is a reference to a schedule to this Agreement; and
(g) to the extent that there is any inconsistency between these terms and conditions or any schedule or other attachment that forms part of this Agreement, these terms and conditions shall prevail.
2. Term
2.1 This Agreement commences on the Commencement Date and will continue for the Term, unless terminated earlier in accordance with clause 13 of this Agreement.
2.2 Upon expiry of the Initial Term, this Agreement will automatically renew for successive one year terms (each, a Renewal Term), unless either party notifies the other party in writing at least 60 days prior to the expiry of the Initial Term or Renewal Term, as applicable, that it wishes to terminate this Agreement at the end of the Initial Term or then-current Renewal Term.
3. Services
3.1 In consideration for payment of the Fees, MyApiary will provide the Customer with:
(h) the number of Administrator and Team accounts to access and use the Services as set out in the Details; and
(i) first line phone support for the Services during the hours of 8:30am to 5:00pm on Business Days.
3.2 To the extent that Customer requires a licence of the Software to obtain the benefit of the Services, MyApiary hereby grants the Customer a non-exclusive, non-transferable licence to use the Software in relation to the Services in accordance with the terms of this Agreement.
4. Usage restrictions
4.1 The Customer will ensure that its use of the Services complies with all applicable laws, statutes, regulations or rules. The Customer will not and will not attempt to: (a) copy, modify, duplicate, decompile or reverse engineer any part of the Services or Software by any means; or (b) assist third parties in obtaining, or attempting to obtain, access to the Services.
5. Fees
5.1 In consideration for the rights granted under this Agreement, the Customer will pay the Fees (plus GST) in accordance with the Payment Instructions set out in the Details, without setoff or deduction.
5.2 In the event that the Customer does not pay any amount due within a further 30 calendar days of the due date for such amount, MyApiary may terminate this Agreement in accordance with clause 13.1. No failure by MyApiary to request any payment under this Agreement will be deemed a waiver by MyApiary of the Customer’s obligations to pay that amount.
6. Intellectual Property Rights and Ownership
6.1 The Customer acknowledges that MyApiary (and/or its suppliers and licensors) retains: (a) all Intellectual Property Rights in and to the Software, Website, Portal and the Services, including the right to use, and to grant third parties the right to use, the Software, Website, Portal and Services for any and all purposes whatsoever; and (b) all right, title and interest in the Software, Website, Portal and Services, including all copies in any form or medium, whether now known or existing or subsequently developed. Except to the extent expressly granted in this Agreement, the Customer acquires no rights in any of the foregoing.
7. Data
7.1 MyApiary takes Data security very seriously. MyApiary’s Services are hosted in New Zealand at a secure facility, with a daily backup stored in a separate secure facility in New Zealand. All transmitted Data is encrypted between servers in accordance with industry best practices.
7.2 The Customer will retain any Intellectual Property Rights that the Customer has in and to the Data. The Customer’s access to the Data through the Services is conditional on full payment of the Fees by the Customer.
7.3 The Customer grants MyApiary a licence for the Term to use, copy, transmit, store, and back-up its information and Data for the purposes of supporting the ongoing development of the Services, to provide the Customer with any support services that are required to assist its use and access of the Services, and for any other purpose related to provision of any services to the Customer by MyApiary.
7.4 MyApiary will use reasonable commercial endeavours to maintain the security and integrity of the Services and Data, but will not be liable for any loss or destruction of any Data for any reason.
7.5 At any time prior to, or one month after, termination or expiry of this Agreement, the Customer may request:
(j) a copy of any Data stored using the Services, provided that the Data has not been deleted and the Customer pays any reasonable costs of providing it with that copy in the form chosen by MyApiary. MyApiary does not warrant that the format of any Data provided to the Customer will be compatible with any software; or
(k) the deletion of the Data stored using the Services, in which case MyApiary must use reasonable efforts to promptly delete that Data. The Customer acknowledges that if it requests the deletion of any Data prior to termination or expiry of the Agreement it may affect the quality of, or the Customer’s ability to receive, the Services, and MyApiary will have no liability or responsibility to the Customer in such circumstances.
7.6 The Customer acknowledges that one month after termination or expiry of this Agreement, MyApiary may at its discretion delete any Data stored using the Services, and MyApiary will have no liability or responsibility to the Customer in respect of any such deletion.
7.7 Any personal information provided by the Customer will be used in accordance with MyApiary’s privacy policy which is set out at www.myapiary.com/privacypolicy.
8. Referral Rights & Case Study Commitment
8.1 If we deliver on our service promises, we will ask you, within 6 months following implementation completion, for 2 qualified referrals of similar or equivalent value within your community or network that you know will benefit in the same way you will. At that time, these referrals will be provided with an appropriate introduction and contact details so you can help them get the same management insight and staff productivity gains you have.
8.3 This reciprocity is the right option because it ensures everyone’s best interests are aligned to securing the very best possible business outcomes for both parties.
8.3 We also agree to willing participate in assisting with a compelling case study that outlines our success and results achieved (noting any public promotional material will be approved and signed off by Client – no commercial sensitivities will ever be disclosed).
9. Confidentiality
8.1 Except as is otherwise required by law or any regulatory authority, each party undertakes to the other that during and after the Term it shall keep secret and shall not without the prior written consent of the other party disclose to any third party, except as permitted under this Agreement and except to its legal and professional advisors (provided that before disclosure, the disclosing party must make such persons aware of their obligations of confidentiality under this Agreement), any Confidential Information belonging to the other party.
10. Warranties and acknowledgments
10.1 To the extent permitted by law and subject to clause 11, MyApiary makes no warranties in relation to the Services or the Software and disclaims and excludes all implied conditions or warranties, including that that the Services or the Software will be:
(l) fit for a particular purpose;
(m) compatible with the Customer’s equipment; or
(n) free from errors, loss, destruction, interruption, corruption (including corruption of data), or that the Services or the Software will be timely or secure.
10.2 The Customer will not, and will procure that its Users do not:
(o) attempt to undermine the security or integrity of the Services, Portal or Website, or attempt to gain unauthorised access to any other User’s account;
(p) use or misuse the Services Portal or Website in any way which may impair the functionality of the Services, Portal or Website or any other systems used to deliver the Services, or impair another user’s use of the Services, Portal or Website;
(q) transmit or input into the Portal any content or material that may be offensive or in violation of law, or that the User does not have the right to use; and
(r) directly or indirectly introduce or permit the introduction of any files, viruses, worms, trojans or other malicious code into the Services, Portal or Website, or in any other manner corrupt, degrade or disrupt the operation of the Services, Portal or Website or any other person’s software or computing device.
10.3 The Customer acknowledges that:
(s) MyApiary may from time to time update, alter, upgrade or carry out maintenance on the Services which may cause the Services to be unavailable for a period of time;
(t)it must, and will procure that its Users must, comply with all laws applicable to its use of the Service and not use the Service for any unlawful purpose;
(u) MyApiary is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications systems; and
(v) the Customer must procure that its Users keep their passwords confidential, and the Customer is solely responsible for all activities that occur through the accounts of its Users.
10.4 Where the Customer uses the Services for business purposes, the Customer and MyApiary each confirm, acknowledge and agree that it is “in trade”, the Portal and the Services are arranged or acquired in trade or for a business purpose, and to the fullest extent permitted by law, the provisions of the Consumer Guarantees Act 1993 do not apply.
11. Indemnity
11.1 The Customer will indemnify and defend MyApiary (and its officers, directors, employees and agents) (Indemnified Parties) for all damages, liabilities, expenses, and fees arising out of or in connection with any third party claim against the Indemnified Parties based on: (i) the Customer’s use or misuse of the Services, including claims of infringement of third party’s intellectual property, or (ii) the type of data received or processed by MyApiary on behalf of the Customer.
12. Limitation of Liability
12.1 If the Customer is a “consumer” for the purposes of the Fair Trading Act 1986 and Consumer Guarantees Act 1993, nothing in this Agreement excludes, restricts or modifies the application of any provision, the exercise of any right or remedy, or the imposition of any liability that the Customer may have under those Acts.
12.2 To the maximum extent permitted by law, MyApiary will not be liable or responsible for any loss or damage arising from the Customer’s (and any Administrator’s or User’s) use of (or inability to use) the Services or the Software, including any loss, costs or damages arising from any:
(w) corruption or loss of data or other information;
(x) malware that may be transmitted to any computer used by the Customer (or a User or Administrator) by its use of the Services or the Software; or
(y) interruption, suspension or discontinuance of the Services.
12.3 Except as required by law, MyApiary will not be liable for any indirect or consequential loss or special damages, loss of profit or any costs, expenses or other claims whatsoever (and whether caused by the negligence of MyApiary, its employees or agents or otherwise) which arise out of, or in connection with any breach of contract, equity, common law, statutory duty or by reason of any representation, implied warranty or other condition.
13. Liability cap
13.1 Subject to clause 12.1, MyApiary’s maximum aggregate liability to the Customer for all claims arising out of or in relation to this Agreement shall in no circumstances exceed an amount equal to the Fees paid by the Customer in the 12 month period that immediately precedes the date the claim arose.
14. Termination
14.1 MyApiary may terminate this Agreement immediately in accordance with clause 5.2.
14.2 Either party may terminate this Agreement immediately by giving written notice to the other:
(z) if both parties agree, that the service does not meet its business purpose, such agreement not to be unreasonably withheld.
(aa) if the other party commits a material breach of its obligations under this Agreement and, in the case of a breach which is capable of remedy, fails to remedy it within 30 days of written notice specifying the breach and requiring it to be remedied; or
(bb) if the other party becomes the subject of an Insolvency Event.
15. Consequences of Termination
15.1 Upon termination of this Agreement:
(cc) the Customer’s rights to access the Services will immediately cease;
(dd) a pro-rated Fee (based on the account fee divided by 12 months) will be refunded to the Customer for the unused term rounded to the nearest month, minus any termination cost; and
(ee) each party shall immediately return all Confidential Information belonging to the other which it holds, or if instructed shall arrange for its immediate destruction.
15.2 Clauses 6, 7, 8, 9, 10, 11, 12, 14 and any other provision that by their nature are intended to survive termination or expiration of this Agreement shall so survive.
16. Dispute resolution procedure
16.1 If a dispute arises in relation to this Agreement, the parties must first use all reasonable endeavours to attempt to resolve the dispute amongst themselves. If the parties agree a resolution of the dispute, they will sign a statement setting out the terms of the resolution and shall ensure that any actions pursuant to this resolution are fully and promptly carried out.
16.2 If the parties have not resolved the dispute after 15 Business Days (or such longer period as the parties agree in writing) from the date of a meeting held pursuant to clause 15.1, either party may commence proceedings in respect of the dispute.
17. Notices
17.1 Any notice given under or in relation to this Agreement must be in writing addressed to the recipient at the
-
- address notified by the recipient from time to time in writing to the other party. The initial addresses are those set out in the Details. Delivery may be effected by hand, email, by post with postage prepaid. A notice will be deemed to have been received:
(ff) if by hand, at the time of delivery;
(gg) if by email, at the time the recipient manually acknowledges receipt (and for those purposes, an automated “out of office” or “read receipt” message will not be considered to be manually acknowledged); or
(hh) if by postage, 3 Business Days after posting.
17.2 If a notice is received or deemed received after 5pm on a day that is not a Business Day, the notice will be deemed received on the next Business Day.
18. Force Majeure
18.1 Neither party has any liability to the other for any lack of performance or failure to comply with this Agreement where the same arises from any cause reasonably beyond the control of either party.
19. Assignment
19.1 The Customer may not licence or subcontract any of its rights or obligations under this Agreement.
19.2 MyApiary may assign, transfer, licence or subcontract any of its rights or obligations under this Agreement without the Customer’s consent.
20. Variations
20.1 This Agreement may not be amended or modified without the written agreement of the Customer and MyApiary.
21. Severability
21.1 If any provision contained in this Agreement is held to be invalid or unenforceable by any judicial or other competent authority, all other provisions of this Agreement will remain in full force and effect and will not in any way be impaired.
22. No Waiver
22.1 If MyApiary does not exercise or enforce any rights available to MyApiary under this Agreement, that does not constitute a waiver of those rights.
23. Entire Agreement
23.1 This Agreement constitutes the entire agreement and understanding between the parties in relation to its subject matter and no earlier representation, warranty or agreement in relation to any matter dealt with in this Agreement has any force from the Commencement Date of this Agreement.
24. Governing Law and Jurisdiction
24.1 This Agreement is governed by and is to be construed in accordance with New Zealand law. The parties irrevocably agree that the courts of New Zealand shall have non-exclusive jurisdiction to settle any dispute which may arise out of or in connection with this Agreement.